United States v. Hawkins, Gerard ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 05-4311, 05-4243
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERARD HAWKINS and MONIQUE HAWKINS,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 03-114-CR-01/02 M/F—Larry J. McKinney, Chief Judge.
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ARGUED FEBRUARY 15, 2007—DECIDED MARCH 9, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and KANNE,
Circuit Judges.
POSNER, Circuit Judge. The defendants were convicted by
a jury of violating the federal mail fraud statute, and of
related crimes, arising from a scheme to defraud mortgage
lenders by submitting inflated appraisals of the property
to be mortgaged. They were sentenced (following a re-
mand for resentencing in light of United States v. Booker,
543 U.S. 220 (2005)) to 63 and 45 months in prison, respec-
tively. Their appeals challenge only their sentences.
2 Nos. 05-4311, 05-4243
The sole issue is the amount of loss caused by the fraud.
The indictment specified nine properties, and evidence
presented at trial indicated that the loss relating to those
properties was $736,700. The presentence investigation re-
port identified ten more properties involved in the fraud,
and estimated the loss related to those properties to be
$311,211. The defendants’ sentences were based on the
aggregate losses and might have been less had the
additional estimate in the presentence investigation re-
port been disregarded. The figures we have given are for
Gerard Hawkins; they are different for Monique Hawkins
but the differences are immaterial.
Gerard Hawkins’s lawyer complains because at sen-
tencing the judge incorrectly stated that “that money”—the
total of more than $1 million estimated in the presentence
investigation report—“was found to have been a loss by the
jury itself,” and as a result of this error the judge had failed
to make his own estimate of the loss related to the proper-
ties that had not been before the jury at the trial. But the
lawyer fails to identify any errors in the report. He implies
that when a presentence investigation report is not based
on evidence presented at trial, the judge has an independ-
ent duty to determine its accuracy. The lawyer is pushed
into this corner by the failure of either of the Hawkinses’
trial lawyers to object to the report’s accuracy. Gerard
Hawkins’s lawyer did challenge the report, but he specified
no errors in it—and a defendant “must produce more than
a bare denial, or the judge may rely entirely on the [re-
port].” United States v. Mustread, 42 F.3d 1097, 1101-02 (7th
Cir. 1994); see also United States v. Romero, 469 F.3d 1139,
1147 (7th Cir. 2006); United States v. Caldwell, 448 F.3d 287,
290 (5th Cir. 2006); Fed. R. Crim. P. 32(i)(3)(A).
Instead, Monique Hawkins’s lawyer made the frivolous
contention, which was then adopted (it seems) by her
Nos. 05-4311, 05-4243 3
husband’s lawyer, that only a jury (if there is a jury) can
make findings of fact that can influence a sentence. As we
have explained countless times, echoing Booker, see 543 U.S.
at 259-60, the first step in sentencing under the Booker
regime is for the judge to determine the sentencing range
under the sentencing guidelines. E.g., United States v.
Roberson, 474 F.3d 432, 435 (7th Cir. 2007). To do so he often
will have to make factual determinations. He is authorized
to do so. United States v. Caldwell, supra, 448 F.3d at 290.
Having calculated the guidelines range, he can give a
sentence inside or outside the range, provided the sen-
tence complies with the standard set forth in 18 U.S.C.
§ 3553(a). E.g., United States v. Johnson, 471 F.3d 764,
764 (7th Cir. 2006); United States v. Demaree, 459 F.3d 791,
794-95 (7th Cir. 2006); United States v. Miller, 450 F.3d 270,
275 (7th Cir. 2006).
Because the Hawkinses’ trial lawyers either do not read
judicial opinions or do not understand them, or cannot
distinguish a majority from a dissenting opinion, or are “in
denial,” or are “Booker protesters,” they insist that a judge
cannot be allowed to base a sentence on any facts other
than those determined by the jury. As a result, they failed
to raise the objection now pressed on us by Gerard
Hawkins’s appellate lawyer (that, as we are about to see,
the presentence investigation report is unreliable on the
amount of loss). This demonstrates that a lawyer’s obses-
sions can harm his clients.
This lawyer, who does not share the trial lawyers’
obsession, argues that since his client objected to the
sentence, albeit on the wrong ground, he should be permit-
ted to object on the right ground in this court. But the
argument made in the district court that only a jury can
make findings of fact that influence the severity of the
4 Nos. 05-4311, 05-4243
sentence did not alert the judge to the complaint now
made that the presentence investigation report overesti-
mated the loss caused by the fraud. They are completely
different arguments, and the second, not having been made
in the district court, is forfeited. The judge had every
reason to believe that neither defendant doubted the
accuracy of that estimate (as distinct from its admissibility),
and in the absence of concrete objections to its accuracy he
had, as we have indicated already, no duty to audit the
report.
Of course we can still review for plain error. But for an
error to be plain, it must first of all be an error. Gerard
Hawkins’s appeal brief points to no mistake in the
presentence investigation report. It merely asserts, with-
out particulars, that the report is flawed. It is not our
duty to paw through the report trying to figure out what
errors it might contain.
The submission on behalf of Monique Hawkins is
incompetent. In an argument section just two pages in
length, the brief contends that Booker “specifically hold[s]
that any Guideline sentence be calculated based only on
facts found by a jury.” That is the “holding” of the dissent-
ing Justices in Booker. See United States v. Booker, supra, 543
U.S. at 284-85 (Stevens, J., dissenting in part).
AFFIRMED.
Nos. 05-4311, 05-4243 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-9-07